Anthea Hammon v Asko Appliances (AUST.) PTY. Ltd

Anthea Hammon, a homeowner, commenced proceedings against Asko Appliances (Aust) Pty Ltd, alleging that a fire that damaged her property was caused by a fault in one of their appliances. The defendant disputed this claim, contending that the fire was instead caused by a lightning strike. Both parties engaged experts who provided conflicting reports on the cause of the fire. The plaintiffs initially sought to rely on evidence from an expert different from the one originally retained, arguing that the original expert had provided an incomplete report. The defendant opposed this application, contending that the plaintiffs' failure to comply with case management orders and the introduction of a new expert so close to the trial date would be unfair and unjust.

The court had to determine whether the plaintiffs were entitled to rely on evidence from a new expert, despite the failure to comply with case management orders, and whether the new evidence could be categorised as evidence in reply. The court also had to consider whether the introduction of a new expert so close to the trial date would be fair to the defendant and whether it would result in a multiplicity of experts on the same issue. The court was required to balance the need for a fair trial against the potential prejudice to the defendant in allowing the new evidence.

The court found that the plaintiffs' delinquency in obtaining the report from the original expert was egregious and that the plaintiffs were not entitled to rely on the new expert's report. However, the court also found that the part of the report that raised new issues should be excluded, while the part that responded to the defendant's expert's opinion should be allowed. The court granted conditional leave to the plaintiffs to rely on the new expert's report, putting them to the election as to the expert upon which they relied. The court emphasised the importance of compliance with case management orders and the need to avoid a multiplicity of experts on the same issue.

The court ordered that the plaintiffs were granted conditional leave to rely on the new expert's report, but only to the extent that it responded to the defendant's expert's opinion. The plaintiffs were put to the election as to the expert upon which they relied, and the part of the report that raised new issues was excluded. The court emphasised the importance of compliance with case management orders and the need to avoid a multiplicity of experts on the same issue. The case serves as a reminder of the importance of adhering to case management orders and the potential consequences of failing to do so.